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Alternative Dispute Resolution Law - Ftta And Amend The Consumer Protection Act, The Fees Act 1957 And The Consumer Authorities Cooperation Act

Original Language Title: Alternative-Streitbeilegung-Gesetz – AStG sowie Änderung des Konsumentenschutzgesetzes, des Gebührengesetzes 1957 und des Verbraucherbehörden-Kooperationsgesetzes

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105. Federal law, which enacted a federal law on alternative dispute resolution in consumer affairs, and amended the Consumer Protection Act, the Fees Act 1957 and the Consumer Co-operation Act

The National Council has decided:

Article 1

Federal Law on Alternative Dispute Resolution in Consumer Matters (Alternative-Dispute Settlement-Law-AStG)

Section 1

General

Scope

§ 1. (1) This federal law regulates the procedure for alternative settlement of disputes concerning obligations arising from a contractual agreement between one in Austria, to be carried out by the entities for alternative dispute resolution pursuant to Article 4 (1). (§ 1 of the Consumer Protection Act, BGBl.), established entrepreneurs and a consumer resident in Austria or in another State Party to the Agreement on the European Economic Area (§ 1 of the Consumer Protection Act). No 140/1979).

(2) This federal law shall not apply to:

1.

Disputes concerning health services provided by health professionals to patients in order to assess, maintain or restore their state of health, including prescribtion, delivery and Provision of medicinal products and medical devices,

2.

Disputes with public providers of further or higher education,

3.

non-economic services of general interest and

4.

Purchase contracts for immovable property.

(3) This federal law also regulates certain aspects of the implementation of Regulation (EU) No 524/2013 on the online settlement of consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009 /22/EC (Regulation on Online Dispute Resolution in Consumer Affairs), OJ C 327, 30.4.2004, p. No. OJ L 165, 18.06.2013 p. 1.

Relationship with other statutory provisions

§ 2. In the case of the collision, a provision of this federal law goes to another law determining the implementation of a sector-specific Union act on out-of-court proceedings initiated by a consumer against an entrepre Right-of-law procedures.

Definitions

§ 3. In the sense of this federal law, the terms mean:

1.

Alternative dispute resolution: any procedure carried out by an alternative dispute resolution body (hereinafter referred to as the AS position) in accordance with Article 4 (1) and which aims to propose a solution to the parties or to the parties concerned with the aim of: to bring them together to an amicable agreement;

2.

Schlichter: The natural person entrusted with the dispute settlement.

Section 2

Entities providing alternative dispute resolution

Competent bodies

§ 4. (1) AS-entities within the meaning of this Federal Law are within the scope of their competence

1.

the Schlichtungsstelle der Energie-Control Austria,

2.

the Telekom Schlichtungsstelle der Rundfunk und Telekom Regul-GmbH,

3.

the Post-Schlichtungsstelle der Rundfunk und Telekom Regul-GmbH,

4.

the Agency for Passenger and Passenger Rights,

5.

the Joint Schlichtungsstelle der Österreichischen Kreditwirtschaft,

6.

the Internet ombudsman,

7.

the Ombudsman's Prefabricated Office and

8.

the conciliation procedure for consumer transactions.

(2) For the treatment of complaints which do not fall within the competence of one of the AS-entities referred to in paragraph 1 (1) to (7), the arbitration for consumer transactions as referred to in paragraph 1 (8) of the Z 8 is additionally responsible as a collection point of contact.

Symbols of the AS posts

§ 5. (1) AS-entities in accordance with § 4 (1) have to lead the AS-digit character.

(2) The AS-digit symbol consists of the coat of arms of the Republic of Austria (federal coat of arms) and the phrase "State-recognised consumer lighting centre"; it is in the Appendix 1 .

(3) The AS-digit character may only be conducted by the AS-entities in accordance with § 4 (1).

Procedural rules

§ 6. (1) In accordance with the following provisions and with the provisions of § § 12 to 16, each AS-digit has to lay down rules for the procedure on complaints which are to be submitted to it.

(2) The procedural rules shall ensure that disputes are settled fairly, practically and on the basis of an objective assessment of the circumstances of the complaint and with due regard to the rights of the parties.

(3) The rules of procedure shall be laid down, as in the case of a circumstance revealed by the Schlichter in accordance with § 10 (3), which is capable of affecting its independence and impartiality.

(4) The rules of procedure may provide that the parties and their representatives shall be prohibited from bringing the dispute or the contents of the conciliation proceedings to the public during a pending procedure and thereafter, or to make media coverage of it. In the event of an infringement, the procedural rules may provide for consequences.

(5) The rules of procedure may provide that, when a procedure is initiated, consumers shall have a small contribution to the costs of the proceedings.

(6) Legal or procedural rules may provide that the processing of a complaint shall be rejected if:

1.

the complaint is willingly or bullishly,

2.

the complaint has been or has already been dealt with by an AS body or a court of law,

3.

the value of the dispute shall exceed or exceed a specified threshold;

4.

the consumer does not submit the complaint to the AS body within a period of at least one year from the date on which he lodged the complaint with the trader, within a time limit laid down in the procedural rules,

5.

the handling of the dispute would seriously affect the effective operation of the AS site;

6.

the consumer does not make it credible in the complaint that he has tried to reach an agreement with the trader or that he has not demonstrably recovered this attempt within a reasonable time limit set by the ADR body.

Grounds for refusal may not significantly affect consumer access to procedures.

(7) In accordance with § 14, the AS-entity shall inform the parties of the treatment of a complaint within three weeks of receipt of the complete dossier, indicating the reasons for the refusal.

Information obligations

§ 7. (1) AS bodies shall be obliged to maintain a continuously updated website which shall provide the parties with easy access to information on the procedure.

(2) AS-entities shall, on their website, on request also on a durable medium, and in any other way which they consider appropriate, clearly and easily understand, in any event, the following information:

1.

Contact details, including postal address and email address,

2.

the fact that it is a notified AS position,

3.

via the conciliators, including information on their appointment, their intended function time, their names, their acquired qualifications and their professional career so far,

4.

where appropriate, affiliation to networks of AS posts to facilitate cross-border dispute resolution,

5.

the types of disputes for which competence is given, including any thresholds,

6.

the procedural rules,

7.

the grounds on which the handling of a complaint may be refused,

8.

Languages in which complaints may be lodged and languages in which the procedure may be conducted,

9.

the rules on which the ADR body may rely on the dispute settlement,

10.

preconditions which the parties may have to comply with;

11.

the possibility for the parties to cancel the proceedings,

12.

where appropriate, costs to be borne by the parties,

13.

the legal effects of the outcome of the proceedings;

14.

where appropriate, how a result can be made enforceable, and

15.

the average duration of the procedure.

(3) AS-entities shall publish their activity report in accordance with § 9 on their website.

Other commitments

§ 8. (1) shall have AS posts

1.

to ensure that complaints and documents can be submitted on-and offline,

2.

allow the exchange of information between the parties by electronic means or, where appropriate, by post,

3.

to accept domestic as well as cross-border disputes; and

4.

to offer training courses for the conciliators if necessary.

(2) AS-entities have to take measures to process the processing of personal data in accordance with the Data Protection Act 2000, BGBl. I No 165/1999, in particular

1.

to collect and use data only in so far as this is necessary for the implementation of a procedure;

2.

the deletion of personal data within three months of the expiry of a period of three years from the date of notification of the outcome of a procedure; and

3.

Data security measures in accordance with § 14 Data Protection Act 2000, in order to protect the data against loss, destruction, manipulation and access by unauthorized persons.

Activity Report

§ 9. An annual activity report shall be drawn up by AS bodies. This has at least to include information on

1.

the number and type of complaints received,

2.

systematic or significant problems, which often arise and lead to disputes between consumers and entrepreneurs, including, where appropriate, recommendations on how such problems can be avoided or resolved in the future,

3.

the percentage of disputes whose processing has been rejected by the AS office, together with the reasons for the refusal to deal with the dispute;

4.

the percentage of proceedings which have been terminated without result and, if known, the reasons for the cancellation,

5.

the average amount of time required to resolve the dispute;

6.

the percentages of the cases in which the parties have taken the results of the proceedings, provided that they are known to the AS body,

7.

where appropriate, information on the cooperation of the AS-agency with networks of AS bodies facilitating the settlement of cross-border disputes and, where appropriate, an assessment of the effectiveness of such cooperation,

8.

where appropriate, training courses for the conciliators entrusted with the dispute settlement, and

9.

an assessment of the effectiveness of the procedure offered by the AS position and of the possibilities for improving its performance.

Appointment of the Schlichter, Qualification and Rules of Befanity

§ 10. (1) The conciliator responsible for the conduct of the proceedings shall be responsible for exercising his duties independently and impartially. It shall have legal knowledge, the necessary expertise, the experience and the skills necessary for the work in the AS position or the judicial settlement of consumer disputes.

(2) The conciliator shall be ordered for at least three years. It may only be dismissed if:

1.

the existence of facts which do not allow an independent and impartial exercise of the activity as a conciliator to be expected,

2.

it is not only temporarily prevented from carrying out the activity as a conciliator, or

3.

is another important reason.

(3) The conciliator shall immediately have all the circumstances which are likely to affect his or her independence or impartiality, or which may cause conflicts of interest with either of the parties, or may only give this impression, without delay. to the management of the AS position. If the conciliator is the head of the AS-position, the disclosure shall be made to the deputy.

(4) In the event of a conciliator's bias, the management of the AS-agency, in the case of the bias of the conductor, has to replace the deputy with another.

(5) In so far as the conciliator is employed or remunerated exclusively by a professional or business association whose member is the entrepre, he shall have a separate accounting and sufficient resources.

Collegial bodies

§ 11. If collegial bodies are set up as a settlement body, they shall be filled with the same number of representatives of the interests of consumers and of representatives of business interests.

Section 3

Procedures before AS posts

Procedural requirements, initiation of proceedings and procedural rights

§ 12. (1) The procedure shall be initiated with the request of the consumer to complain to the competent AS body.

(2) Participation in the procedure is voluntary. The parties may cancel the procedure at any stage. The parties shall be informed of this possibility prior to the implementation of the procedure.

(3) A representation or support of the parties by lawyers or third parties is admissible at any procedural stage, but not mandatory. The parties shall be informed of this possibility prior to the implementation of the procedure.

(4) In order to represent the parties pursuant to paragraph 3, officials and employees are also one of the associations mentioned in § 29 para. 1 KSchG, as well as interest representatives within the meaning of § 37 paragraph 3 Z 9 of the Lease Law, BGBl. No 520/1981, which require officials and workers to be empowered to do so by the respective association.

(5) The AS-Body shall notify the parties as soon as it has received all the necessary information and documents for the first time.

(6) The parties shall be entitled to express their views within a reasonable period to be determined by the ADR body, on the preparation of the counterparties, as well as on the findings and opinions of experts and on other evidence results.

(7) Paragraph 2 shall apply to entrepreneurs only unless otherwise provided for by contract or by law.

Procedural costs

§ 13. Participation in the proceedings shall be free of charge for the parties, unless otherwise provided for by law or in accordance with the respective rules of procedure, in accordance with Section 6 (5).

Duration of procedure

§ 14. (1) The outcome of the proceedings shall be communicated to the parties in writing or on another durable medium within 90 days of receipt of the complete complaint, giving the reasons for the decision.

(2) In the case of highly complex disputes, the AS-position may extend the period referred to in paragraph 1. The parties are to be informed about this.

Confidentiality

§ 15. (1) The procedure shall not be public.

(2) Unless the parties agree otherwise, the conciliators and employees of the conciliation body are obliged to secrecy on all facts which are entrusted to them in the context of a conciliation procedure or otherwise become known. They shall treat the documents drawn up or submitted to them in the course of the conciliation procedure confidentially.

(3) Paragraph 2 does not apply to the information required by the AS-entities in accordance with § 4 (1) (1) to (4) for the performance of the tasks assigned to them by law.

Solution Proposal

§ 16. (1) If a solution to the dispute is not achieved in any other way, the arbiter may submit to the parties a concrete proposal for the settlement thereof. The solution proposal has to move within the framework of the laws.

(2) The parties shall be free to agree to this proposed solution. The parties shall be informed of this prior to the granting of consent,

1.

that they have the choice to approve or reject the solution proposal,

2.

that participation in the proceedings does not preclude the possibility of seeking the enforcement of their rights in court,

3.

that the solution proposal can be different from the outcome of a court case and

4.

the legal effects which the adoption of the proposed solution has.

(3) The parties shall be given a reasonable period of consideration for their consent.

Termination of proceedings

§ 17. (1) The procedure shall be closed if:

1.

the consumer withdraws his application or declares not to wish to continue the proceedings,

2.

the operator does not participate in the procedure or declares not to wish to continue the proceedings,

3.

the AS authority is not competent for the lodging of a complaint;

4.

there is a reason for refusal in accordance with Article 6 (6), or

5.

an agreement has been reached or the unification attempt has been unsuccessful.

(2) The procedure shall be deemed to have ended with notification of the result.

Limitation of limitations

§ 18. The introduction of a complaint and the proper continuation of proceedings before a competent ADR body shall inhibit the beginning and continuation of the limitation period and other time limits to assert the rights and claims concerned by the proceeding.

Section 4

Information requirements

Information requirements for entrepreneurs

§ 19. (1) An entrepre shall inform the consumer of the AS position or of the AS posts on which he or she is registered, if he or she is obliged or obliged to do so in order to resolve disputes with consumers. Turn on. This information shall contain information on the website address of the relevant AS position or AS posts.

(2) The information referred to in paragraph 1 shall be provided by the trader, if any, on its website and, where appropriate, in the general terms and conditions of business in a clear, comprehensible and easily accessible manner.

(3) If the operator and the consumer are unable to reach agreement on a dispute, the trader shall have the consumer on paper or another durable medium on the AS position or competent AS bodies responsible for it. . At the same time, the contractor shall indicate whether he or she will participate in a procedure.

Section 5

Support, information and cooperation of AS-entities

Support for consumers in cross-border disputes

§ 20. (1) In the event of cross-border disputes, the European Consumer Centre Austria shall have the power to assist consumers in finding the competent AS body.

(2) The European Consumer Centre Austria has to act as an OS contact point in accordance with Regulation (EU) No 524/2013 and in so doing parties in the settlement of disputes relating to complaints submitted via the OS platform shall be supported.

Information about AS posts in Europe

§ 21. (1) The ADR bodies, the European Consumer Centre Austria and the competent authorities shall publish the list of European AS bodies on their websites by means of a link to the European Commission's website.

(2) AS bodies, the European Consumer Centre Austria and the competent authorities shall, where appropriate, make the list of European AS bodies available to the public on a durable medium in their premises.

(3) The AS-entities, the European Consumer Centre Austria and the competent authorities have to set a link to the OS platform on their websites.

Cooperation and information exchange-AS posts

§ 22. AS-entities have to cooperate in the settlement of disputes and exchange best practices. The obligations laid down in Section 8 (2) must be complied with.

Cooperation and exchange of information-AS-bodies and competent bodies in accordance with the Consumer Co-operation Act

§ 23. AS and the competent authorities in accordance with § 3 of the Consumer Co-operation Act, BGBl. I No 148/2006, have to cooperate with each other. This cooperation has in particular the exchange of information on business practices in specific sectors of the economy, which have repeatedly received complaints from consumers. The obligations laid down in Section 8 (2) must be complied with.

6.

Authorities and reporting obligations

Competent authorities and central point of contact

§ 24. (1) Competent authority shall be:

1.

for the AS-entities in accordance with § 4 (1) Z 2 to 4 of the Federal Ministers for Transport, Innovation and Technology and

2.

in all other cases, the Federal Minister for Labour, Social Affairs and Consumer Protection.

(2) The Federal Minister for Labour, Social Affairs and Consumer Protection is the central contact point for the European Commission.

Notification of AS posts

§ 25. (1) The central contact point has to be notified to the European Commission by the AS-authorities in accordance with § 4 (1). In doing so, it shall provide the following information:

1.

name, contact details and website address,

2.

where appropriate, charges for the procedure

3.

the languages in which complaints can be submitted to the respective ADR entities, and the languages in which the AS procedure can be conducted,

4.

the types of disputes that fall under the procedure;

5.

sectors and categories of disputes covered by each of the AS posts,

6.

where appropriate, the need for the presence of the parties or their representatives,

7.

an indication as to whether the procedure is or may be conducted orally or in writing,

8.

Binding or non-binding of the result of the process,

9.

the reasons for which the AS-agency may refuse to deal with a complaint; and

10.

A reasoned statement that the body is considered to be within the scope of Directive 2013 /11/EU on the alternative dispute settlement of consumer disputes and amending Regulation (EC) No 2006/2004 and the Directive 2009 /22/EC (Directive on Alternative Dispute Resolution in Consumer Matters), OJ L 145, 31.7.2009, p. No. OJ L 165, 18.06.2013 p. 63, falling AS-position must be qualified and that it complies with the quality requirements of this Federal Law.

(2) The competent authority referred to in Article 24 (1) (1) (1) (1) shall transmit the information referred to in paragraph 1 to the central point of contact, as well as to communicate changes without any unnecessary delay.

(3) In accordance with § 4 (1), if an AS-digit does not fulfil the requirements of this Act, the competent authority shall issue a request to remedy the situation.

(4) If the AS-position of an invitation does not comply without unnecessary delay, at the latest after the expiry of a period of three months, the competent authority of the AS-Body shall have the power to act as an AS-entity within the meaning of this Federal Law with To withdraw the communication and, if necessary, to take note of the one-stop shop.

(5) In the case of paragraph 4, the central point of contact shall reverse the notification.

Reporting requirements of the AS posts

§ 26. (1) AS-entities shall inform the competent authority of the information referred to in Article 25 (1) and of any changes without unnecessary delay.

(2) As of 31 March 2018 and subsequently every two years, AS-entities shall submit a report to the competent authority with the information referred to in paragraph 3 and section 9 over the previous two calendar years. The competent authority referred to in § 24 (1) (1) (1) shall forward these reports to the central point of contact without any unnecessary delay.

(3) In addition, AS authorities shall inform the competent authority of:

1.

information on their structure and funding, including information on the natural persons involved in the dispute settlement and how they are remunerated, how long their working life is and by whom they are employed,

2.

the procedural rules and

3.

the percentages in which the entrepreneurs have refused to participate in the proceedings.

Reporting requirements of the central point of contact

§ 27. (1) The central contact point shall report to the European Commission by 9 July 2018 and thereafter every four years on the developments and functioning of the AS posts. The report shall contain, in particular, the following information:

1.

a description of the best practices of AS bodies;

2.

where appropriate, a statistically substantiated presentation of the inadequacies hampering the activities of AS bodies for the settlement of both domestic and cross-border disputes, and

3.

where appropriate, recommendations on how to improve the effective and efficient functioning of AS posts.

(2) The competent authority referred to in Article 24 (1) (1) (1) (1) shall provide the central point of contact with all the information necessary for the purposes of the report referred to in paragraph 1.

Other obligations of the competent authorities

§ 28. The competent authorities shall monitor the training programmes drawn up by the AS bodies on the basis of the information to be provided to them in accordance with § 9 Z 8 in conjunction with Section 26 (2) of the above.

Section 7

Criminal provisions

Breach of information obligations

§ 29. If an entreptite accepts false information in the information provided pursuant to Article 19 or Article 14 (1) and (2) of Regulation (EU) No 524/2013, he/she shall comply with the information requirements in accordance with § 19 or Article 14 (1) and (2) of Regulation (EU) No. 524/2013 not or not completely, he is committing an administrative surrender and is punished with a fine of up to 750 euros.

Unauthorized guidance of AS-positions-characters

§ 30. Anyone who leads an AS-digit sign without being entitled to do so will be subject to an administrative surrender and will be punished with a fine of up to EUR 3 000.

8. Section

Final provisions

entry into force

§ 31. § § 5 to 19, 21 to 23 and 25 to 30 are only 9. Jänner 2016.

Enforcement

§ 32. With the enforcement of this federal law are entrusted

1.

as regards Section 18 of the Federal Minister of Justice,

2.

with regard to § § 25 (2) and 27 (2) of the Federal Minister for Transport, Innovation and Technology,

3.

with regard to § § 21, 25 (3) and (4), 26. Section 2 and 28, insofar as these are matters of section 24 (1) Z 1, the Federal Minister of Transport, Innovation and Technology, and, in so far as these are matters of section 24 (1) Z 2, the Federal Minister for Labour, Social Affairs and consumer protection and

4.

in respect of the other provisions of the Federal Minister for Labour, Social Affairs and Consumer Protection.

References

§ 33. Insofar as provisions of other federal laws are referred to in this Federal Act, these are to be applied in their respectively applicable version.

Implementation Notice

§ 34. With this federal law, Directive 2013 /11/EU on the alternative settlement of consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009 /22/EC (Directive on Alternative Dispute Resolution) is to be adopted in the Consumer affairs), OJ No. OJ L 165 of 18.06.2013 p. 63.

Article 2

Amendment of the Consumer Protection Act

The Consumer Protection Act, BGBl. No. 140/1979, as last amended by the Federal Law BGBl. I No 33/2014, shall be amended as follows:

1. § 28a Abs.1 reads:

" (1) Those who in business dealings with consumers in connection with door-to-door transactions, off-premises contracts, the general information obligations of the entreprenter (§ 5a), consumer credit relations, Package travel agreements, timeshare conditions, distance selling, the agreement of unfair contract terms, the guarantee or guarantee of the purchase or the production of movable physical property, the Demand for telephone costs (§ 6b) or additional payments (§ 6c), which Performance period (§ 7a) or the transfer of risk (§ 7b), in connection with information society services in electronic commerce, investment services, asset management services, payment services, the issue of E-money violates a statutory bid or prohibition, in connection with the alternative dispute settlement (§ 19 AStG) or the online dispute resolution (Article 14 (1) and (2) of Regulation (EU) No 524/2013) infringed information obligations or against a legal requirement or prohibition on the basis of Directive 2006 /123/EC on services in the internal market, OJ C 139 No. OJ No L 376 of 27. 12. 36, in the case of the provision of services in the internal market, thereby affecting the general interests of consumers, it is possible to be subject to dismissal without prejudice to section 28 (1) of this Directive. "

(2) The following paragraph 30 is added to § 41a:

" (30) § 28a (1) in the version of the Federal Law BGBl. I n ° 105/2015 will take place at 9. Jänner 2016 in force. "

Article 3

Amendment of the Fees Act 1957

The Fees Act 1957, BGBl. No. 267, as last amended by the Federal Law BGBl. I No 17/2015, shall be amended as follows:

1. The following Z 5 shall be added to Section 33 of the subheading 20 (2):

" 5.

Comparisons of consumer disputes in front of an AS post in accordance with § 4 of the Alternative Dispute Settlement Act, BGBl. No. 105/2015. "

(2) The following paragraph 36 is added to § 37:

" (36) § 33 Tariff Post 20 Section 2 Z 5 in the version of the Federal Law BGBl. I n ° 105/2015 will take place at 9. Jänner 2016 in force. "

Article 4

Amendment of the Consumer Co-operation Act

The Consumer Co-operation Act, BGBl. I n ° 148/2006, as last amended by the Federal Law BGBl. I No 33/2014, shall be amended as follows:

1. In Annex Z 1, the point at the end of the lit. i is replaced by a stroke point and the following lit. j and lit. k is added:

" j)

Article 13 of Directive 2013 /11/EU on the alternative settlement of consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009 /22/EC (Directive on Alternative Dispute Resolution) Consumer affairs), OJ No. OJ L 165 of 18 June 2013, p. 63;

k)

Article 14 of Regulation (EU) No 524/2013 on the online settlement of consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009 /22/EC (Regulation on online dispute resolution in the EU) Consumer affairs), OJ No. OJ L 165, 18. June 2013, p. 1.

(2) The following paragraph 3 is added to § 14:

" (3) Z 1 lit. j and k of the annex in the version of the Federal Law BGBl. I n ° 105/2015 will take place at 9. Jänner 2016 in force. "

Fischer

Faymann